**Wlw  ‘ 

^UBibftr 


BEFORE  THE 

g>erretarg  of  the  ^Inferior. 


In  the  Matter  of  the  Circular  Order,  No.  601,  of  the 
Commissioner  of  Indian  Affairs,  of 
January  27,  1912. 


Respecting  Religious  Garb  and  Insignia  in  Government 
Indian  Schools. 


REPLY  BRIEF  OF  HENRY  B.  F.  MACFARLAND, 
COUNSEL. 


Approved:  April  13,  1912. 

The  Home  Missions  Council, 

By  Charles  L.  Thompson,  President. 

The  Indian  Rights  Association, 

By  M.  K.  Sniffen,  Secretary. 

The  Federal  Council  of  the  Churches  of  Christ  in 
America, 

By  E.  B.  Sanford,  Secretary. 


Press  op  Byron  S.  Adams,  Washington,  D.  C. 


BEFORE  1 HE 


^rretarg  uf  tip?  interim*. 


In  the  Matter  of  the  Circular  Order,  No.  601,  of  the 
Commissioner  of  Indian  Affairs,  of 
January  27,  1912. 


Respecting  Religious  Garb  and  Insignia  in  Government 
Indian  Schools. 


REPLY  BRIEF  OF  HENRY  B.  F.  MACFARLAND, 
COUNSEL. 


The  Order  in  Question. 

Circular  order  No.  601,  January  27,  1912,  is  as  follows: 


“To  Superintendents  in  Charge  of  Indian  Schools: 

“In  accordance  with  that  essential  principle  in  our 
national  life — the  separation  of  Church  and  State — 
as  applied  by  me  to  the  Indian  Service,  which  as  to 
ceremones  and  exercises  is  now  being  enforced  under 
the  existing  religious  regulations,  I find  it  necessary  to 


2 


issue  this  order  supplementary  to  those  regulations,  to 
cover  the  use  at  those  exercises  and  at  other  times, 
of  insignia  and  garb  as  used  by  various  denominations. 
At  exercises  of  any  particular  denomination  there  is, 
of  course,  no  restriction  in  this  respect,  but  at  the  gen- 
eral assembly  exercises  and  in  the  public  school  rooms, 
or  on  the  grounds  when  on  duty,  insignia  or  garb  has 
no  justification. 

“In  Government  schools  all  insignia  of  any  denom- 
ination must  be  removed  from  all  public  rooms,  and 
members  of  any  denomination  wearing  distinctive  garb 
should  leave  such  garb  off  while  engaged  at  lay  duties 
as  Government  employees.  If  any  case  exists  where 
such  an  employee  cannot  conscientiously  do  this,  he 
will  be  given  a reasonable  time,  not  to  extend,  how- 
ever, beyond  the  opening  of  the  next  school  year  after 
the  date  of  this  order,  to  make  arrangements  for  em- 
ployment elsewhere  than  in  Federal  Indian  Schools. 

“Respectfully, 

(Signed)  “Robert  G.  Valentine, 

“Commissioner.” 

Action  of  the  President. 

On  February  3,  1912,  the  President  wrote  the  Secretary 
of  the  Interior  as  follows: 

“My  dear  Mr.  Secretary: 

“It  has  been  brought  to  my  attention  that  an  order 
has  been  issued  by  the  Commissioner  of  Indian  Affairs 
supplementing  the  existing  religious  regulations  in  re- 
spect to  the  Indian  schools.  This  order  relates  to  the 
general  matter  which  you  and  I have  had  under  con- 
sideration and  concerning  which,  at  your  request,  the 
Commissioner  was  collecting  detailed  information  for 
our  advice.  The  Commissioner’s  order  has  been  made 
without  consultation  either  with  you  or  with  me.  It 
not  only  prohibits  the  use  of  distinctive  religious  in- 
signia at  school  exercises,  but  also  the  wearing  of  dis- 
tinctive religious  garb  by  school  employees,  and  pro- 
vides that  if  any  school  employee  cannot  conscientious- 


3 


Of” 


-f  • 


.V4 


ly  comply  with  the  order,  such  employee  will  be  given 
a reasonable  time,  not  to  extend,  however,  beyond  the 
opening  of  the  next  school  year,  to  make  arrangements 
for  employment  elsewhere  than  in  Federal  Indian 
schools.  I fully  believe  in  the  principle  of  the  separa- 
tion of  the  Church  and  State  on  which  our  Govern- 
ment is  based,  but  the  cpiestions  presented  by  this  or- 
der are  of  great  importance  and  delicacy.  They  arise 
out  of  the  fact  that  the  Government  has  for  a con- 
siderable period  taken  over  for  the  use  of  the  Indians 
certain  schools  theretofore  belonging  to  and  conducted 
by  distinctive  religious  societies  or  churches.  As  a part 
of  the  arrangements  then  made  the  school  employees 
who  were  in  certain  cases  members  of  religious  orders, 
wearing  tbe  distinctive  garb  of  these  orders,  were  con- 
tinued as  teachers  by  the  Government,  and  by  ruling 
of  the  Civil  Service  Commission  or  by  executive  action 
they  have  been  included  in  the  classified  service  under 
the  protection  of  the  civil  service  law.  1 he  Commis- 
sioner’s order  almost  necessarily  amounts  to  a dis- 
charge from  the  Federal  Sendee  of  those  who  have 
thus  entered  it.  This  should  not  be  done  without  a 
careful  consideration  of  all  phases  of  the  matter,  nor 
without  giving  the  persons  directly  affected  an  oppor- 
tunity to  be  heard.  As  the  order  would  not  in  any  event 
take  effect  until  the  beginning  of  the  next  school  year,  I 
direct  that  it  be  revoked  and  that  action  by  the  Com- 
missioner of  Indian  Affairs  in  respect  thereto  be  sus- 
pended until  such  time  as  will  permit  a full  hearing  to 
be  given  to  all  parties  in  interest  and  a conclusion  to 
be  reached  in  respect  to  the  matter  after  full  delibera- 
tion. 

“Sincerely  yours, 

(Signed)  “William  H.  Taft.” 

The  Hearing  Before  the  Secretary  of  the  Interior. 

The  hearing  referred  to  in  the  President’s  letter  was  held 
by  the  Secretary  of  the  Interior,  on  April  8,  1912,  from 
half  past  ten  until  half  past  five  o’clock  with  an  hour  s re- 


4 


cess,  at  which  time  representatives  of  the  Home  Missions 
Council,  the  Indian  Rights  Association,  the  Federal  Council 
of  Churches,  and  of  the  Bureau  of  Catholic  Indian  Missions 
as  well  as  others,  were  patiently  and  courteously  heard  by 
the  Secretary  of  the  Interior. 

At  this  hearing  a printed  brief  by  Charles  J.  Bonaparte, 
general  counsel  of  the  Bureau  of  Catholic  Indian  Missions, 
was  presented  by  the  director  of  that  Bureau,  Rev.  William 
H.  Ivetcham,  who  on  the  following  day  furnished  copies  of 
it  to  the  undersigned. 

The  Fundamental  Legal  Principle. 

Replying  to  the  brief  of  Mr.  Bonaparte,  the  logical  order 
of  consideration  seems  to  us  to  require  that  we  should  first 
state  the  fundamental  legal  principle  involved,  as  does 
President  Taft  in  his  letter  to  Secretary  Fisher  when  he 
says,  “I  fully  believe  in  the  principle  of  separation  of  the 
Church  and  State  on  zvhich  our  Government  is  based,  but 
the  questions  presented  by  this  order  are  of  great  importance 
and  delicacy.”  (Italics  ours.) 

This  is  not  simply  a philosophical  principle  of  politics,  but 
a binding  principle  of  law.  It  is  expressed  in  Article  I of 
the  amendments  of  the  Constitution  of  the  United  States  as 
follows : 


“Congress  shall  make  no  law  respecting  an  estab- 
lishment of  religion,  prohibiting  the  free  exercise  there- 
of; * * * ” 

(The  rest  of  the  article  refers  to  other  subjects.) 

This  is  binding  not  only  upon  Congress,  but  upon  .all 
the  agents  of  the  Government  in  the  execution  of  the  laws 
enacted  by  Congress,  including  appropriations  of  money. 
All  the  officers  of  Government  have  taken  an  oath  to  sup- 


5 


port  and  execute  the  Constitution  and  its  principles  are 
mandatory  upon  them.  Familiarity  with  the  Constitution 
should  not  breed  contempt  for  it,  or  cause  public  officers  to 
think  lightly  of  its  principles. 

This  is  especially  true  of  the  principle  involved  in  this 
matter  whose  application  and  importance  have  received  the 
testimony  not  only  of  our  own  courts  and  jurists,  but  of 
competent  authorities  of  other  countries,  the  “present  pos- 
terity” of  Bacon,  from  DeToqueville  to  Bryce. 

Mr.  Justice  Field,  in  delivering  the  unanimous  opinion 
of  the  Supreme  Court  in  Davis  v.  Beason,  133  U.  S.,  333, 
states  the  accepted  doctrine  in  the  following  words: 

“The  first  amendment  to  the  Constitution,  in  declar- 
ing that  Congress  shall  make  no  law  respecting  the  es- 
tablishment of  religion,  or  forbidding  the  free  exercise 
thereof,  was  intended  to  allow  everyone  under  the  jur- 
isdiction of  the  United  States  to  entertain  such  notions 
respecting  his  relation  to  his  Maker  and  the  duties 
that  imposes  as  may  be  approved  by  his  judgment  and 
conscience,  and  to  exhibit  his  sentiments  in  such  form 
of  religion  as  he  may  think  proper  not  injurious  to  the 
equal  rights  of  others,  and  to  prohibit  legislation  for 
the  support  of  any  religious  tenets,  or  the  modes  of 
religion  of  any  sect.”  (Italics  ours.) 

Not  to  multiply  citations  we  refer  only  to  one  other  case 
in  the  Supreme  Court,  Reynolds  v.  U.  S.,  98  U.  S.,  162; 
and  out  of  the  many  commentaries  we  cite  only  those  of 
Story,  section  1879  of  his  Commentaries  on  the  Constitu- 
tion; Von  Holst,  Constitutional  Law,  section  74;  Bryce, 
American  Commonwealth,  Vol.  2,  Chap.  CII,  p.  570. 

We  adopt  the  quotation  made  by  the  Commissioner  of 
Indian  Affairs  in  his  statement  at  the  hearing  before  the 
Secretary  of  the  Interior  from  the  instructions  given  by  the 
Secretary  of  War  (Mr.  Elihu  Root)  to  the  governor  of  the 


6 


Philippines  (Mr.  William  H.  Taft)  in  1904  respecting  the 
settlement  of  the  question  with  the  Vatican  as  to  the  Friars 
lands  in  the  Philippines,  as  follows: 

“One  of  the  controlling  principles  of  our  government 
is  the  complete  separation  of  Church  and  State,  with 
the  entire  freedom  of  each  from  any  control  or  inter- 
ference by  the  other.  This  principle  is  imperative 
wherever  American  jurisdiction  extends,  and  no  modi- 
fication or  shading  thereof  can  be  a subject  of  dis- 
cussion.” ( Italics  ours. ) 

We  dwell  upon  this  principle  because  in  the  printed  brief, 
and  in  the  argument,  of  the  opponents  of  circular  order 
No.  601,  attempt  has  been  made  to  minimize  its  importance 
and  application,  because  it  was  seen  that  it  was  decisive  of 
the  case  under  consideration.  And  the  opinion  of  the 
Supreme  Court  in  Quick  Bear  v.  Leupp,  210  U.  S.,  50,  was 
so  quoted  as  to  make  the  impression  that  it  departed  from 
the  Constitutional  principle  involved,  and  the  uniform  doc- 
trine of  the  Supreme  Court. 

The  Application  of  the  Principle. 

A. 

Circular  order  No.  601,  in  terms,  deals  only  with  “Gov- 
ernment schools  ” and  “Government  employees,”  while  en- 
gaged in  their  official  duties  in  such  schools.  It  has  nothing 
to  do  with  the  schools  belonging  to  any  church,  whether  en- 
tirely supported  by  that  church,  or  wholly,  or  in  part,  by  the 
Indians  whose  children  are  in  the  schools  by  the  use  of 
money  belonging  to  Indians  either  directly,  or  through  their 
trustee,  the  United  States.  The  issue  ought  not  to  be  ob- 
scured by  the  fog  of  questions  not  involved  in  it. 


7 


We  must  repeat,  with  emphasis,  that  our  contention  is 
that  in  Government  schools  Government  employees  while 
on  duty  should  not  wear  a sectarian  garb,  or  exhibit  sec- 
tarian insignia,  because  it  is  a violation  of  the  Constitution 
of  the  United  States  so  to  do.  Such  action  on  their  part 
as  the  agents  of  Congress  establishes  pro  tanto  not  only  re- 
ligion in  general,  but  a particular  form  of  religion  in  a 
strictly  Governmental  institution  in  execution  of  legislation 
by  Congress.  It  takes  a Government  building,  Government 
facilities,  Government  time  for  the  teaching  of  a religion  by 
Government  employees  enrolled  in  the  Civil  Service  of  the 
United  States,  paid  by  the  Government  from  Government 
funds  raised  bv  general  taxation  of  the  whole  citizenship, 
supplemented  in  some  cases  by  money  appropriated  by  the 
Government  for  the  general  benefit  of  the  Indians,  but 
wholly  within  the  authority  and  discretion  of  the  Govern- 
ment. All  this  is  done  under  the  American  flag  typifying 
the  sovereign  authority  of  the  whole  people  through  their 
Government.  The  attempt  in  the  argument  to  make  this 
seem  a small  matter  is  the  natural  resort  of  those  who  are 
hard  pressed.  It  is  obvious  that  no  such  violation  of  the 
Constitution  can  be  considered  a small  matter.  Even  if  it 
was  not  carried  on  as  it  is  in  a number  of  Government 
schools,  by  a number  of  Government  employees,  at  widely 
scattered  places  throughout  a large  portion  of  the  United 
States,  even  if  it  were  confined  to  one  Government  school, 
it  would  still  be  necessary  to  root  it  out  in  order  to  vindi- 
cate the  Constitution,  and  prevent  a larger  encroachment 
upon  the  liberties  of  the  people.  All  history  shows  that  such 
encroachments  always  begin  in  a small  way,  and  if  not 
checked  spread.  But  the  present  practice  is  not  confined 
to  one  school  or  to  a few  places.  As  the  facts  stated  at  the 
hearing  show  it  is  of  large  extent  and  importance.  The 
mere  resistance  to  circular  order  Xo.  601  evidences  this 
fact- 


8 


The  obvious  analogy  to  the  Government  Indian  schools 
is  found  in  our  public  schools.  In  the  national  capital  the 
public  school  system  is  directly  under  the  authority  of  the 
Congress  of  the  United  States.  Suppose  that  the  Board 
of  Education  of  the  District  of  Columbia,  an  agent  of  Con- 
gress, should  take  over  a sectarian  private  school  with  its 
officers  and  teachers  and  they  should  continue  to  wear  dur- 
ing their  school  duties,  their  sectarian  garb  and  insignia, 
and  exhibit  sectarian  insignia  upon  the  public  school  room 
walls,  does  anyone  suppose  that  Congress  would  permit  such 
a practice  to  continue?  Does  anyone  suppose  that  if  the 
question  were  taken  to  the  courts  it  would  be  allowed  to 
continue?  No  one  has  any  such  idea.  This  suggests  the 
touchstone  in  the  present  case.  It  is  this,  can  Congress 
through  its  agents  establish  a religion,  pro  tanto,  in  a Gov- 
ernment school  without  violating  the  Constitution  of  the 
United  States?  There  can  be  but  one  answer  to  this  ques- 
tion. Neither  Congress  nor  its  agents  can  do  so,  and  all 
are  equally  bound  to  prevent  such  a thing  from  being  done, 
or,  when  it  is  brought  to  notice,  continued. 


B. 

This  brief  deals  only  with  the  law  of  the  case,  and, 
therefore,  in  its  view  it  matters  not  whether  the  Govern- 
ment employees  in  the  Government  schools  affected  by  cir- 
cular order  No.  601,  wear  the  garb  and  insignia  of  the 
Roman  Catholic  Church,  or  of  the  Protestant  Episcopal 
Church,  or  of  the  Salvation  Army,  or  of  the  Society  of 
Friends,  or  of  any  other  religious  sect.  But  it  is  proper  to 
maintain  as  so  well  stated  by  the  Court  of  Appeals  of  New 
York  in  the  case  of  O’Connor  v.  Hendrick,  184  N.  Y.,  421 
(page  428),  that  “the  effect  of  the  costume  worn  at  all  times 
in  the  presence  of  the  pupils  would  be  to  inspire  respect  if 
not  sympathy  with  the  religious  denomination  to  which  they 


9 


belong.  To  this  extent  the  influence  was  sectarian  even  if 
it  did  not  amount  to  the  teaching  of  denominational  doc- 
trine.” 

That  opinion  further  quotes  with  approval  from  a dis- 
senting opinion  of  Justice  W illiams  in  the  case  of  Hysong 
v.  School  District  (164  Pa.  St.,  629,  654),  in  which  he  says 
the  teachers  “come  into  the  schools  not  as  common  school 
teachers  or  as  civilians,  but  as  the  representatives  of  a par- 
ticular order  in  a particular  church  whose  lives  have  been 
dedicated  to  religious  work  under  the  direction  of  that 
church.  Now  the  point  of  the  objection  is  not  that  their 
religion  disqualifies  them.  It  does  not.  Nor  is  it  thought 
that  church  membership  disqualifies  them.  It  does  not.  It 
is  not  that  holding  an  ecclesiastical  office  or  position  dis- 
qualifies, for  it  does  not.  It  is  the  introduction  into  the 
schools  as  teachers  of  persons  who  are  by  their  striking  and 
distinctive  ecclesiastical  robes  necessarily  and  constantly 
asserting  their  membership  in  a particular  church,  and  in  a 
religious  order  within  that  church,  and  the  subjection  of 
their  lives  to  the  direction  and  control  of  its  officers.” 

This  presents  accurately  the  reasoning  as  to  the  wear- 
ing of  a religious  garb  and  the  exhibition  of  religious  in- 
signia in  such  a case.  It  would  not  apply,  obviously,  to  con- 
cealed insignia,  or  even  to  small  objects  worn  inconspicu- 
ously. with  ordinary  clothes,  as  for  example,  a watch  charm 
or  pin. 

In  view  of  the  citation  in  the  brief  and  argument  of  our 
opponents  of  Hysong  v.  School  District  as  “the  leading 
case”  on  this  subject,  as  against  the  later  case  in  the  Court 
of  Appeals  of  New  York,  O’Connor  v.  Hendrick,  wherein 
the  judges  were  unanimous  in  support  of  the  principle  for 
which  we  contend,  it  is  necessary  for  us  to  state  not  only 
that  the  New  York  decision  is  now  generally  regarded  as  the 
leading  case,  but  also  that  the  Supreme  Court  of  Pennsyl- 


10 


vania  in  a subsequent  decision.  Commonwealth  v.  Herr, 
229  Penn.,  132,  abolished  the  practice  allowed  by  the  deci- 
sion in  Hysong  v.  School  District  upholding  the  constitu- 
tionality of  an  act  of  the  legislature  passed  because  of  that 
decision  in  which  the  people  had  declared  that  the  sectarian 
garb  should  not  be  worn  in  their  public  schools.  Thus, 
now,  the  position  taken  by  the  minority  of  the  Supreme 
Court  of  Pennsylvania  in  Hysong  v.  School  District  and  so 
well  expressed  by  Mr.  Justice  Williams  has  been  upheld  by 
the  people  and  the  people’s  action  has  been  sustained  by  the 
same  Supreme  Court  which  rendered  the  opinion  in  Hysong 
v.  School  District.  Hysong  v.  School  District  is  no  longer 
law. 

The  brief  of  Mr.  Bonaparte  makes  no  reference  to  the 
subsequent  decision  in  the  Supreme  Court  of  Pennsylvania. 
Nor  did  the  oral  argument  of  Mr.  Edgar  H.  Gans. 

C. 

As  we  stated  at  the  hearing  before  the  Secretary  of  the 
Interior  we  make  no  objection  to  the  wearing  of  any  garb 
by  any  Government  employee  when  off  duty.  Nor  did,  nor 
would,  we  make  any  objection  to  the  appointment  to  service 
as  teachers  in  any  Government  Indian  School  of  any  per- 
son found  competent  by  the  Civil  Service  examination  no 
matter  what  his  or  her  religion  may  be.  We,  of  course, 
agree  that  any  discrimination  on  account  of  religion  would 
be  as  much  a violation  of  that  portion  of  Article  I of  the 
amendments  of  the  Constitution  upon  which  we  rest  our 
case  as  the  practice  which  circular  order  No.  601,  sought  to 
abolish. 

D. 

The  statements  made  both  in  the  oral  argument  of  Mr. 
Edgar  H.  Gans,  and  in  the  brief  of  Mr.  Charles  J.  Bona- 
parte, make  it  necessary  for  us  to  ask  that  a careful  ex- 


11 


amination  be  made  of  the  entire  opinion  of  the  Supreme 
Court  of  the  United  States  in  Quick  Bear  v.  Leupp,  210 
U.  S.,  50,  including  the  pleadings  embodied  by  the  court 
in  a note,  and  also  of  the  entire  opinion  of  the  same  court 
alluded  to  by  it  in  the  Quick  Bear  opinion,  namely,  that 
in  Bradfield  v.  Roberts,  165  U.  S.,  291. 

It  must  be  repeated  that  in  neither  case  did  the  Supreme 
Court  pass  upon  the  question  involved  here.  It  was  deal- 
ing in  both  cases  with  totally  different  questions.  It  need 
hardly  be  said  that  in  neither  case  did  it  deny  the  conten- 
tion which  we  maintain  as  to  the  constitutional  principle,  or 
its  application  to  such  a state  of  facts  as  is  presented  here. 
The  Bureau  of  Catholic  Indian  Missions,  the  real  defend- 
ant in  the  Quick  Bear  v.  Leupp  case,  expressly  disclaimed 
in  that  case  any  claim  that  public  money  for  Government 
schools  could  be  employed  for  any  such  sectarian  purpose  as 
that  now  protested  against.  See  paragraph  12,  answer  of 
the  defendants  (quoted  in  the  note  to  the  opinion  of  the 
court),  last  clause  as  follows: 

“The  above  paragraph  contains  all  the  matter  per- 
tinent to  the  appropriation  of  public  moneys  for  the 
support  of  education  in  sectarian  schools.  The  ap- 
propriations ceased  with  the  Indian  appropriation  act 
of  1899,  have  never  been  made  since,  nor  is  any  one 
asking  that  they  should  be  made,  or  that  any  public 
moneys  of  the  United  States  raised  by  taxation  should 
be  employed  for  such  purposes.” 

The  Bureau  of  Catholic  Indian  Missions  appears  in  the 
present  case  as  asking  what  it  said  in  that  case  it  would 
not  ask,  and  we  appear  as  opposing  any  such  use  of  the 
public  moneys  of  the  United  States  raised  by  taxation  for- 
bidden by  the  action,  as  well  as  by  the  declaration  of  Con- 
gress, whose  appropriations  for  the  support  of  education  in 
sectarian  schools  ceased  in  1899. 


12 


All  that  the  Supreme  Court  decided  in  Quick  Bear  v. 
Leupp  is  that  the  Indians  may  use  their  own  moneys  for 
the  purpose  of  educating  their  children  in  schools  of  their 
choice.  At  the  same  time  the  court  expressly  recognized 
the  constitutional  principle  of  the  separation  of  Church  and 
State  forbidding  the  appropriation  of  public  moneys  for 
sectarian  purposes  in  the  paragraph  that  sums  up  its  judg- 
ment as  follows : 

“But  we  cannot  concede  the  proposition  that  In- 
dians cannot  be  allowed  to  use  their  own  money  to 
educate  their  children  in  the  schools  of  their  own  choice 
because  the  Government  is  necessarily  undenomina- 
tional, as  it  cannot  make  any  law  respecting  an  estab- 
lishment of  religion  or  prohibiting  the  free  exercise 
thereof (Italics  ours.) 

Of  course,  the  court  decided  only  the  question  that  was 
before  it,  and  was  not  called  upon  to  make  a more  general 
statement  respecting  the  constitutional  principle  involved 
here. 

In  the  oral  argument  at  the  hearing  before  the  Secretary 
of  the  Interior  an  erroneous  impression  was  made  (un- 
intentionally no  doubt),  by  another  quotation  by  Mr.  Gans 
from  the  opinion  of  Chief  Justice  Fuller  in  the  Quick  Bear 
case.  That  quotation  was  as  follows : 

“Some  reference  is  made  to  the  Constitution,  in  re- 
spect to  this  contract  with  the  Bureau  of  Catholic  In- 
dian Missions.  It  is  not  contended  that  it  is  unconsti- 
tutional, and  it  could  not  be.  Roberts  v.  Bradfield,  12 
App.  D.  C.,  475:  Bradford  v.  Roberts,  175  U.  S.,  291, 
44  L.  Ed.  168,  20  Sup.  Ct.  Rep.,  121.” 

This  made  it  necessary  to  ask  that  the  opinion  of  the  Su- 
preme Court  in  Bradford  v.  Roberts,  175  U.  S.,  291,  should 
be  carefully  examined.  It  requires  no  extended  examina- 


13 


tion  to  see  that  that  case  does  not  pass  upon  the  question 
now  under  consideration,  or  upon  the  application  of  the 
constitutional  principle  to  other  Governmental  institutions, 
or  even  the  appropriation  or  payment  of  public  moneys  to  a 
religious  corporation  of  any  kind,  but  only  upon  the  ques- 
tion of  whether  a corporation,  namely,  the  Providence  Hos- 
pital of  the  City  of  Washington,  District  of  Columbia,  with 
which  the  Commissioners  of  the  District  of  Columbia  had 
made  a contract,  was  a religious  corporation.  The  Court 
considered  and  decided  no  other  question,  as  the  opinion 
of  Mr.  Justice  Peckham  distinctly  states,  than  the  alleged 
sectarian  character  of  the  hospital,  and  its  decision  was  only 
that  it  was  not  such  an  institution.  As  Mr.  Justice  Peck- 
ham  says,  page  297,  175  U.  S. : 

“If  we  are  to  assume,  for  the  purpose  of  this  ques- 
tion only,  that  under  this  appropriation  an  agreement 
with  a religious  corporation  of  the  tenor  of  this  agree- 
ment would  be  invalid,  as  resulting  indirectly  in  the  pas- 
sage of  an  act  respecting  an  establishment  of  religion, 
we  arc  unable  to  see  that  the  complainant  in  his  bill 
shows  that  the  corporation  is  of  the  kind  described,  but 
on  the  contrary  he  has  clearly  shown  that  it  is  not.” 

The  decisions  and  opinions  in  Quick  Bear  v.  Leupp  and 
Bradfield  v.  Roberts  should  therefore  be  dismissed  from 
consideration  in  this  case. 


E. 

We  cannot  agree  with  the  suggestion  made  at  the  hear- 
ing that  this  matter  can  be  properly  settled  by  allowing  the 
Government  employees  now  wearing  sectarian  garb  to  con- 
tinue to  do  so  until  they  die,  resign  or  are  dismissed  on  the 
understanding  that  no  new  employees  shall  be  allowed  to 
wear  the  garb,  and  that  effort  shall  be  made  to  prevent  per- 


14 


sons  wearing  the  sectarian  garb  from  taking  a Civil  Ser- 
vice examination  for  place  in  the  Indian  School  service.  It 
would  be  impracticable  from  a legal  point  of  view  to  pro- 
hibit persons  wearing  the  sectarian  garb  from  taking  the 
Civil  Service  examination  since  the  Civil  Service  Commis- 
sion is  forbidden  to  consider  either  religion  or  politics,  and 
those  placed  on  the  eligible  lists  would  be  entitled  to  appoint- 
ment upon  the  occurrence  of  vacancies.  However,  even  if 
no  more  persons  wearing  sectarian  garb  should  be  ap- 
pointed to  the  Government  Indian  School  service  we  could 
not  consent  to  permit  the  continuance  of  the  violation  of  the 
constitutional  principle  by  those  who  are  now  in  that  ser- 
vice. Judging  from  the  past  the  last  of  them  would  not 
have  disappeared  from  the  service  for  many  years  to  come, 
but  every  day’s  continuance  of  such  an  one  in  the  permanent 
Indian  service  is  a day’s  violation  of  the  fundamental  prin- 
ciple of  law,  and  should  not  be  permitted.  Moreover  the 
number  so  violating  the  principle  of  the  fundamental  law 
is  large,  and  has  been  increasing,  instead  of  decreasing  as 
might  have  been  expected  since  it  was  expressly  stated  in 
the  original  Civil  Service  Commission  order  that  vacancies 
thereafter  appearing,  in  the  schools  in  question,  should  be 
filled  only  from  the  eligible  lists  of  the  Civil  Service  Com- 
mission. 

The  Illegal  “Covering  in”  Order  and  Practice. 

1. 

The  Civil  Service  Commission  order  of  June  6,  1895,  is 
contained  in  the  following  letter  dated  June  10,  1895: 

“The  Secretary  of  the  Interior  : 

Sir:  This  Commission  is  in  receipt  of  your  commu- 
nication of  Tune  3,  1895,  requesting  that  the  superin- 
tendents, teachers  and  matrons  of  the  following  con- 


15 


tract  schools  whose  transfer  to  the  government  is  pend- 
ing be  included  in  the  classified  service  without  exam- 
ination by  the  Civil  Service  Commission.  In  an  inter- 
view with  the  Superintendent  of  Indian  Schools,  the 
Commission’s  attention  was  called  to  the  fact  that  cer- 
tain sectarian  or  contract  schools  proposed  to  transfer 
the  entire  schools  to  the  Indian  Service,  and  the  Com- 
mission agreed  that  these  schools  be  treated  in  the  same 
way  that  a post  office  is  treated  when  it  becomes  a free 
delivery  office,  that  the  fact  of  its  being  a free  delivery 
office  extends  the  classification  to  that  office,  and  as  this 
was  a condition  also  made  by  these  contract  schools 
in  agreeing  to  the  transfer,  it  has  been  ordered  that  the 
Montana  Industrial  School,  Crow  Agency,  Montana, 
Hope  School,  Springfield,  South  Dakota,  Greenville 
School,  Greenville,  California,  and  the  Wittenberg 
School,  Wittenberg,  Wisconsin,  be  treated  as  having 
been  brought  into  the  classified  service  including  such 
of  the  employees  as  may  be  reported  to  the  Civil  Ser- 
vice Commission.  Vacancies  hereafter  occurring  in 
these  schools,  however,  will  be  filled  from  the  eligible 
registers  of  the  Commission. 

Please  inform  the  Commission  of  the  names,  with 
the  positions  held  and  dates  of  entry  into  the  service 
of  the  employees  at  these  schools  treated  as  classified. 

Very  respectfully  yours,  etc., 

John  R.  Proctor, 

President,  Civil  Service  Commission.” 

The  distinguished  counsel  for  our  opponents  apparently 
differ  widely  as  to  the  relation  of  the  order  of  the  Civil 
Service  Commission  of  June  6,  1895  (letter  of  June  10, 
1895),  to  the  question  raised  by  the  circular  order  No.  601. 
Mr.  Edgar  H.  Gans  at  the  hearing  stated  that  the  order  of 
June  6.  1895  (letter  of  June  10,  1895),  and  the  practice  un- 
der it  should  not  be  considered  as  an  important  element  in 
the  case,  and  sought  to  minimize  the  argument  against  the 
legality  of  that  order  and  practice.  A sufficient  answer  to 


Mr.  Gans  is  found  in  the  statement  of  the  President  in  his 
letter  to  the  Secretary  of  the  Interior  under  date  of  Feb- 
ruary 3,  1912,  in  which  he  says: 


“They”  (the  questions  presented  by  the  order)  “arise 
out  of  the  fact  that  the  Government  has  for  a consid- 
erable period  taken  over  for  the  use  of  the  Indians  cer- 
tain schools  theretofore  belonging  to  and  conducted  by 
distinctive  religious  societies  or  churches.  As  a part 
of  the  arrangements  then  made  the  school  employees 
who  were  in  certain  cases  members  of  religious  orders, 
wearing  the  distinctive  garb  of  these  orders,  were  con- 
tinued as  teachers  by  the  Government,  and  by  ruling 
of  the  Civil  Service  Commission  or  by  executive  ac- 
tion they  have  been  included  in  the  classified  service 
under  the  protection  of  the  Civil  Service  law.  The 
Commissioner’s  order  almost  necessarily  amounts  to  a 
discharge  from  the  federal  service  of  those  who  have 
thus  entered  it.” 

On  the  other  hand,  Mr.  Charles  J.  Bonaparte,  in  the 
printed  brief,  evidently  considers  the  Civil  Service  question 
important  although  he  misapprehends  its  relation  to  this 
case.  He  says  (page  7)  : 

“There  has  been  some  suggestion  that  this  order 
with  respect  to  garb  could  be  justified  because  the 
original  incorporation  in  the  classified  service  of  the 
teachers  affected  was  of  doubtful  legality  under  the 
Civil  Service  Law.” 

No  such  suggestion  has  been  made  by  us  at  any  time. 
Nor  had  we  heard  of  any  such  suggestion.  We  do  con- 
tend that  the  order  of  June  6,  1895  (letter  of  June  10, 
1895),  and  the  practice  under  it  were  and  are  without  war- 
rant of  law,  but  we  do  not  justify  the  circular  order  No. 
601  by  this  contention.  We  only  say  that  the  Civil  Service 


17 


Commission  order  and  practice  afforded  the  persons  affected 
no  protection,  either  in  law,  or  in  equity,  against  separa- 
tion from  the  Civil  Service  if  they  did  not  comply  with  an 
order  forbidding  them  to  wear  sectarian  garb,  or  display 
sectarian  insignia,  while  on  duty  as  Government  employees. 
In  this  we  are  simply  meeting  the  suggestion  made  by  our 
opponents  that  the  Civil  Service  Commission  order  and  the 
practice  under  it  gave  such  employees  some  equitable  rights 
in  the  premises.  It  is  admitted  that  no  Government  em- 
ployee has  a vested  right,  legal  or  equitable,  in  the  place 
which  he  holds,  and  from  which  he  may  be  removed  at  any 
time.  Even  if  the  persons  affected  by  circular  order  No. 
601  had  all  been  legally,  and  properly,  appointed  under  the 
Civil  Service  law,  as  the  result  of  competitive  examination 
and  certification  from  the  eligible  lists  they  would  not  be 
protected  from  removal  by  their  superiors  in  office. 

As  to  the  original  suggestion  which  Mr.  Bonaparte,  with 
characteristic  humor,  makes  that  if  the  incorporation  of  the 
teachers  affected  in  the  Government  Civil  Service  was  il- 
legal, those  teachers  are  still  mere  private  citizens,  and 
therefore  not  subject  to  the  orders  of  the  Commissioner  of 
Indian  Affairs,  it  suffices  to  say  that  dc  facto  they  are  Gov- 
ernment employees  so  long  as  they  draw  Government  pay, 
for  doing  Government  work,  in  Government  establishments 
under  direction  of  Government  officers.  So  long  as  they 
remain  in  such  a situation  they  are  subject  to  orders  of  the 
Commissioner  of  Indian  Affairs. 

2. 

When  Mr.  Bonaparte  comes  to  consider  seriously  the  im- 
portant question  of  the  order  of  June  6,  1895  (letter  of 
June  10,  1895),  and  the  practice  under  it,  which  (as  the 
President  has  indicated)  has  a close  relation  to  circular 


18 


order  No.  601,  having  to  make  the  best  of  a bad  case  he  is 
forced  to  take  a position  which  causes  deep  regret  to  one 
who  like  the  undersigned  has  followed  him  for  many  years 
as  a leader  in  Civil  Service  reform.  It  excites  surprise 
that  as  counsel  for  the  Bureau  of  Catholic  Indian  Missions 
he  would  condone  and  even  advocate  an  order  and  a practice 
which  he  would  have  condemned  and  combatted  as  President 
of  the  National  Civil  Service  Reform  League.  For  that  order 
and  that  practice  are  absolutely  opposed  to  the  spirit  and  the 
letter  of  the  Civil  Service  act,  and  the  teachings  of  the 
National  Civil  Service  Reform  League.  In  a word,  that 
order  and  practice  have  “covered  in,”  or  rather  smuggled 
in  as  members  of  a duly  classified  part  of  the  Civil  Sendee 
those  who  had  never  passed  the  competitive  examination 
required  for  the  places  to  which  they  were  appointed.  The  ' 
principle  of  that  order  and  practice  zvas , that  purely  private 
positions  in  private  employment,  having  no  legal  connection 
whatever  with  the  Government  service,  could  be  classified 
as  part  of  the  Civil  Service,  and  with  their  incumbents  in- 
corporated in  that  Civil  Service.  In  their  operation  the 
order  and  practice  opened  a wide  back  door  to  the  Civil 
Service,  similar  to  that  front  door  of  the  days  of  the  old 
spoils  system  which  Civil  Service  reformers  have  been  en- 
deavoring to  close,  and  which  the  Civil  Service  act  was 
supposed  to  have  closed  as  to  the  classified  service.  Privi- 
leged persons  were  under  the  order  and  practice  given  en- 
trance to  the  Civil  Service  under  the  old  aristocratic  prin- 
ciple of  favoritism,  as  against  the  new  democratic  principle 
that  all  comers  should  have  equal  opportunity  in  competitive 
examinations,  and  that  the  best,  as  shown  by  that  test, 
should  be  appointed. 

No  Civil  Service  reformer  it  is  believed,  before  the  filing 
of  the  printed  brief  of  Mr.  Bonaparte  in  this  case  ever 
before  contended  that  the  Civil  Service  act  of  January  16, 


19 


1883,  contemplated  the  extension  of  the  classified  service, 
for  which  it  provided,  over  private  schools,  private  offices, 
private  shops,  private  factories,  or  private  employees  of  any 
kind.  The  Civil  Service  reformers,  like  everybody  else, 
have  claimed  that  the  act,  as  it  says  in  plain  terms,  provides 
for  the  gradual  extension,  by  the  President  in  successive 
classification  orders,  of  the  Civil  Service  rules  which  the 
act  prescribes  in  principle,  over  the  Government  service. 
This  extension  by  classification,  beginning  with  a small 
section  of  the  Civil  Service  has  not  yet  gone  over  the  entire 
Governmental  service.  When  the  classified  service  is  co- 
extensive with  the  Civil  Service  the  ideal  of  the  Civil  Serv- 
ice act  so  far  as  its  extent  is  concerned  will  have  been 
realized.  But  the  incorporation  of  private  positions  whether 
in  schools  or  elsewhere  was,  of  course,  never  contemplated 
by  the  act,  or  by  the  Civil  Service  reform  which  brought 
about  its  enactment. 

The  order  of  June  6,  1895  (letter  of  June  10,  1895),  was 
adopted  by  a quorum  of  two  of  the  Civil  Service  Commis- 
sion, Messrs.  Proctor  and  Harlow,  neither  of  them  a lawyer, 
without  the  advice  of  the  attorney  general  or  any  other  law 
officer  of  the  Government  which  probably  accounts  for  the 
adoption  of  it  in  the  face  of  its  obvious  illegality.  In  the 
letter  of  June  10,  1895,  from  Mr.  Proctor,  president  of 
the  commission  (a  distinguished  geologist),  to  the  Secretary 
of  the  Interior,  Mr.  Proctor  states  that,  in  an  interview  with 
the  then  superintendent  of  Indian  schools,  the  commission 
agreed,  that  the  private  schools  to  be  taken  over,  “should 
be  treated  in  the  same  way  that  a post  office  is  treated  when 
it  becomes  a free  delivery  office,  that  the  fact  of  its  being  a 
free  delivery  office  extends  the  classification  to  that  office.” 

There  is,  of  course,  no  analogy  between  the  automatic  in- 
clusion of  a Government  post  office  whenever  its  business 
warrants  its  being  made  a free  delivery  office  and  the  exten- 


20 


sion  of  the  classified  service  over  a private  school  as  was 
attempted  in  the  order  of  June  6,  1895,  “covering  in”  four 
private  schools  with  their  then  employees. 

The  Indian  service,  including  all  the  Government  schools, 
had  been  classified  by  the  action  of  the  President  in  rules 
which  took  efifect  March  1,  1892. 

Indian  Rule  No.  1 provides  as  follows: 

“The  classified  Indian  Service  shall  include  all  the 
physicians,  school  superintendents,  assistant  superin- 
tendents, school  teachers,  and  matrons  in  that  service, 
classified  under  the  provisions  of  section  6 of  the  act 
to  regulate  the  civil  service  of  the  United  States,  ap- 
proved January  16,  1883.” 

Indian  Rule  No.  4 provides  as  follows : 

“All  vacancies,  unless  filled  by  promotion,  transfer, 
or  reappointment  shall  be  filled  from  the  eligible  lists 
obtained  by  examination.”  (Italics  ours.) 

3. 

The  order  of  June  10,  1895,  was  not  an  order  made  by 
the  President  of  the  United  States,  nor  was  it  made  by  the 
Civil  Service  Commission  by  his  direction  nor  as  his  organ, 
nor  with  his  knowledge  or  consent.  Nor  was  this  a case, 
like  the  familiar  one  cited  by  Mr.  Bonaparte,  Marbury  v. 
Madison,  1 Cr.,  p.  170,  in  which  the  “head  of  a depart- 
ment” (and  the  Civil  Service  Commission  is  not  the  “head 
of  a department”)  “is  the  mere  organ  of  the  Executive 
will,”  as  was  Secretary  Madison,  when  nothing  remained 
for  him  to  do,  in  the  matter  of  the  appointment  of  Mr.  Mar- 
bury as  a notary  public  in  the  District  of  Columbia,  but  to 
band  him  his  signed  commission,  under  his  appointment  by 
the  President  of  the  United  States.  There  is  no  record  in- 


21 


dicating  that  the  President  knew  anything  about  the  Civil 
Service  Commission  order  of  June  6,  1895  (letter  of  June 
10,  1895).  There  is  no  justification  for  the  reflection  upon 
the  then  President,  or  his  successors,  all  of  them  zealously 
endeavoring  to  maintain  Civil  Service  reform,  and  extend 
the  Civil  Service  rules  over  the  Civil  Service  as  rapidly  as 
practicable,  made  in  the  suggestions  of  Mr.  Bonaparte’s 
brief. 

Take  the  present  President  of  the  United  States  whose  ef- 
forts to  extend  the  Civil  Service  rule  command  the  admira- 
tion of  all  Civil  Service  reformers.  Would  it  be  fair  to 
say  of  him  that  while  he  was  thus  endeavoring  to  protect 
and  improve  the  Government  service  at  the  front  door,  lie 
was  knowingly  allowing  admission  to  it  in  violation  of  the 
spirit  and  letter  of  the  Civil  Service  act  at  the  back  door? 

But  as  a matter  of  fact  and  a matter  of  law  the  President 
would  have  no  authority  to  do  so  if  he  desired.  There  is 
therefore  no  value  whatever  in  the  alleged  conclusive  infer- 
ence that  the  illegal  practice  described  has  been  carried  on 
by  the  direction,  and  with  the  approval,  of  successive  Presi- 
dents. 

Mr.  Bonaparte  quotes  on  page  8 of  his  printed  brief  as 
the  warrant  for  such  authority  in  the  President  section  1753 
of  the  Revised  Statutes  as  follows: 

“The  President  is  authorized  to  prescribe  such  regu- 
lations for  the  admission  of  persons  into  the  Civil 
Service  of  the  United  States  as  may  best  promote  the 
efficiency  thereof,  and  ascertain  the  fitness  of  each  can- 
didate in  respect  to  age,  health,  character,  knowledge 
and  ability  for  the  branch  of  service  into  which  he  seeks 
to  enter.” 

But  he  does  not  quote  the  provision  in  section  7 of  the 
Civil  Service  act  of  January  16,  1883  (long  subsequent, 
of  course,  in  date  to  section  1753  U.  S.  R.  S.)  which  ex- 


22 


pressly  limits  the  authority  conferred  by  section  1753  R.  S. 
on  the  President  in  the  provision  that  the  Civil  Service 
act  shall  not  be  considered  to  take  from  the  President  “any 
authority  not  inconsistent  with  this  act  provided  by  the 
seventeen  hundred  and  fifty-third  section  of  said  statute, 
* * * .”  (Italics  ours.)  Since  the  enactment  of  the 

Civil  Service  act  the  President  has  no  authority  under  sec- 
tion 1753  R.  S.  to  do  anything  that  is  inconsistent  with  the 
spirit  and  letter  of  the  Ciznl  Service  act,  and  therefore  he 
has  no  authority  to  authorize  or  direct  the  extension  of  the 
classified  service  over  private  positions  or  employments  or 
private  employees  of  any  kind,  whatsoever. 

4. 

Mr.  Bonaparte’s  brief  indicates  that  he  has  not 

made  a thorough  investigation  of  this  subject. 

Therefore  he  probably  does  not  know  that  the  or- 
der of  June  6,  1895  (letter  of  June  10,  1895), 

attempting  to  bring  private  places  and  their  incum- 

bents into  the  Civil  Service  has  been  used  as  a precedent 
for  other  cases  than  those  arising  in  the  Government  Indian 
School  service.  Besides  the  large  number  of  private  schools 
which  have  been  thus  adopted  with  their  employees  (without 
Civil  Service  examination),  into  the  Government  Indian 
school  service  under  the  order  of  June  6,  1895  (letter  of 
June  10,  1895),  other  places  in  private  employment  with 
their  incumbents  have  been  adopted  into  the  Civil  Service 
in  each  case  under  the  precedent  of  the  order  of  June  6, 
1895.  The  first  of  these  was  on  June  1,  1900,  when  cer- 
tain assistant  engineers  and  electricians,  dynamo  tenders 
and  elevator  conductors  who  had  been  employed  by  the  con- 
tractor for  heating  and  lighting  the  new  post  office  building 
in  Washington,  D.  C.,  during  construction,  were  bodily 


23 


adopted  into  the  classified  service  when  the  building  was 
turned  over  to  the  Post  Office  Department  on  the  1st  of 
July,  1900. 

A later  case  is  that  of  March  21,  1905,  when  Frank  R. 
Paige  and  Thomas  D.  Fay  who  had  been  for  two  years 
master  and  pilot  on  a cutter,  “H.  B.  Chamberlain,”  char- 
tered by  the  Government  in  New  York  harbor  for  immi- 
grant service  were  “covered  in”  to  the  classified  service 
by  the  adoption  of  the  private  positions  which  they  had  held 
under  the  owner  of  the  cutter  “Chamberlain,”  and  assigned 
to  duties  on  a cutter  called  the  “Immigrant,”  which  the 
Government  had  built  for  its  own  use. 

The  national  Civil  Service  Reform  League  has  always 
warned  national,  State  and  municipal  governments  against 
any  departure  from  the  Civil  Service  reform  statutes  and 
principles  objecting  to  sucb  departure,  however  innocent  it 
might  appear  at  the  time  to  be,  that  it  would  probably  be- 
come a precedent  for  successive  departures  more  and  more 
dangerous.  Here  is  a concrete  illustration  of  the  importance 
of  such  a warning  in  the  bad  results  of  a violation  of  the 
spirit  and  letter  of  the  Civil  Service  act  of  January  16, 
1883.  The  order  of  June  6,  1895,  was  well  intended,  but 
improvident,  as  well  as  illegal,  and  certain  to  have  just 
the  effect  which  it  has  had  in  practical  administration  be- 
cause of  the  convenient  opportunity  its  precedent  afforded 
for  appointing  without  examination  to  positions  in  the  Civil 
Service,  by  law  under  the  protection  of  Civil  Service  rules. 

The  theory  of  the  application  of  the  Civil  Service  rules 
to  the  Government  Indian  school  service  on  March  1,  1892, 
is,  of  course,  the  same  as  that  upon  which  the  Civil  Service 
rules  are  being  gradually  extended  over  the  whole  Civil 
Service,  that  on  the  whole  the  candidates  selected  by  an  im- 
partial competitive  examination  free  to  all  will  give  better 
service  than  those  appointed  by  favoritism.  The  children 


24 


in  the  Government  Indian  schools  are  entitled  to  the  best 
teaching  the  Government  can  provide.  Therefore,  they  are 
entitled  to  teachers  selected  by  that  method  which  the  Gov- 
ernment itself  has  adopted  as  that  most  likely  to  furnish  the 
best  results. 


5. 

In  justice  to  the  United  States  Civil  Service  Commission 
it  ought  to  be  stated  that  the  legality  of  the  order  and 
practice  referred  to  was  never  brought  to  its  attention  until 
November  27,  1911,  when  it  was  presented  in  a letter  from 
the  undersigned  as  counsel  for  the  Home  Missions  Council 
of  the  United  States  containing  substantially  the  argument 
which  is  presented  on  this  point  in  this  brief.  Up  to  April 
12,  1912,  no  notice  of  any  action  by  the  United  States  Civil 
Service  Commission  upon  the  questions  thus  raised  has  been 
received.  It  is  assumed  that  the  Commission  will  act  upon 
it  favorably.  It  is  assumed  that  the  practice  was  continued 
because  it  was  not  previously  challenged  by  anyone.  It  is 
assumed  that  if  the  Civil  Service  Commission  could  have 
established  its  legality  it  would  have  done  so  before  this 
time. 

At  any  rate  the  practice  of  thus  “covering  in”  private 
schools  or  other  private  institutions  or  positions  with  their 
incumbents  ought  not  to  be  continued,  and  it  is  respectfully 
submitted  that  the  Secretary  of  the  Interior  and  the  Com- 
missioner of  Indian  Affairs  should  not  ask  for  the  incor- 
poration into  the  Civil  Service  of  any  more  of  such  private 
positions  with  their  incumbents. 

6. 

It  is  difficult  to  consider  seriously  the  final  proposition 
in  the  printed  brief  of  our  opponents  that  the  question  of  the 
enforcement  of  a principle  of  the  Constitution  of  the  United 


25 


States  in  Government  Indian  Schools  should  be  left  to  the 
decision  of  the  Indians  whose  children  attend  a particular 
school.  This  is  more  remarkable  than  the  current  sugges- 
tion that  judicial  decisions  of  constitutional  questions  should 
be  reversed  or  affirmed  by  a majority  of  the  qualified  voters 
of  a State.  Such  a question  as  that  in  this  case  is  to  be 
decided  either  by  the  judiciary,  the  executive,  or  the  legisla- 
ture of  the  country  since  it  is  plainly  a Governmental  ques- 
tion under  the  Constitution  of  the  United  States.  Even 
those  who  advocate  the  popular  review  of  judicial  decisions 
do  not  suggest  it  in  connection  with  the  decisions  of  the 
federal  judiciary.  It  is  equally  strange  to  have  it  suggested 
that  any  citizen  of  the  United  States,  anywhere,  should  not 
be  considered  a “party  in  interest”  in  a matter  affecting 
every  citizen  of  the  United  States  in  his  Constitutional 
rights.  Every  person  who  pays  taxes  through  the  customs 
or  internal  revenue  into  the  federal  treasury  is  certainly  a 
party  in  interest  in  this  matter,  and  has  a right,  if  not  a duty, 
to  protest  against  any  violation  of  the  Constitution  in  ap- 
propriation and  expenditure  of  the  federal  tax  money,  espe- 
cially when  it  threatents,  even  remotely,  the  indispensable 
separation  of  Church  and  State.  Eternal  vigilance  is  still 
the  price  of  liberty. 

Henry  B.  F.  Macfarland, 

Counsel. 

Approved:  April  13,  1912. 

The  Home  Missions  Council, 

By  Charles  L.  Thompson,  President. 

The  Indian  Rights  Association, 

By  M.  K.  Sniffen,  Secretary. 

The  Federal  Council  of  the  Churches  of  Christ  in 
America, 

By  E.  B.  Sanford,  Secretary. 


